An Argument For Repealing The Second Amendment

Feb. 8, 2016 (Mimesis Law) — Last December, the great Popehat, who removes his cape and Clark Kent’s it up over here at Fault Lines as Ken White from time to time, wrote a popular piece on the 2nd Amendment entitled Rights Are Bundled, Not A La Carte. Ken made a brilliantly incisive point about the interconnectedness of our rights and the inherent danger of tinkering with any one right.

Constitutional rights come in a bundle. You may not see the whole bundle; you may only see the particular stick you are holding at any given moment, like free speech or the right to counsel or the right to be free from unreasonable searches. But the bundle is there, and the thread holding it all together is thin. If you pull on your favorite stick too hard trying to separate it, the whole thing falls apart.

Ken masterfully tied his point to other rights that are treasured by criminal defense attorneys like Ken and me. There is no doubt that a direct assault on gun rights will open the door for a counter-attack on the already embattled rights that prohibit the police from searching someone’s pockets without proper legal basis or torturing them into a confession.

But is the almost certain responsive threat to our other rights so horrifying that we should continue to ignore the failure that is the 2nd Amendment?

If you have cartoon steam coming out of your ears right now at the suggestion that the 2nd Amendment is a failure, hang with me here. If you are a regular reader of Fault Lines, then you should know that we aren’t here to rub your tummy with constant agreement. Fault Lines is here to dig deeper and try to unravel incredibly complex issues; pleasantries and consensus be damned.

The 2nd Amendment is one of those incredibly complex issues. It is also, as a right, very, very different. Most of our constitutional amendments establish human rights, like freedom of speech, assembly, due process, voting, etc. A smaller number deal with procedure, such as presidential succession, prohibition of the poll tax, senatorial election, etc. But then there is #2. In our nation’s almost 240 years of existence, the 2nd Amendment is the only time our leaders have granted a constitutional right to possess tools.

At some point along the way, “arms” became exclusively “guns.” There are three main arguments in support of the 2nd Amendment. First, the right to bear arms was meant to ensure that the people had the ability to fight back against a tyrannical government (or in fact a perfectly fine government, as there is no line in the Constitution or elsewhere that delineates when a people may or may not rise up in revolution). Second, arms are necessary for personal security. And third, or the Popehat point, removing one constitutional right endangers all rights because it diminishes the sanctity of the Constitution.

As to armed rebellion, who are we kidding? Our nation has spent decades throwing trillions of dollars at our military and law enforcement agencies. Much of this money has been spent on the most powerful and precise weaponry the world has ever known. It does not matter how many AR-15’s are in public hands, the government will win, win big, and win quickly.

Back in 1776, things were different. Arms technology was so primitive that the 2nd Amendment’s attempt to provide a mechanism to check government power was logical. In 2016, though, the public has personal use firearms and the government has flying death robots and intercontinental ballistic missiles. The fall of the 2nd Amendment as a viable check on government power directly coincides with the massive rise in weapons technology over the last century. Just ask yourself, when is the last time an armed uprising in this country accomplished anything more than civilian casualties and federal prison?

The argument that guns are necessary for personal protection is much more complex. At its most basic level, yes, if someone were to threaten your life, you could potentially eliminate that threat with the “arm” protected by the 2nd Amendment. But it cannot be forgotten that along with the right to protect oneself with firearms comes a lot of baggage. Access to firearms has been proven to increase the rate of suicide. And how many times do we hear stories of children accidentally shooting each other after finding their parents’ guns? Successfully protecting oneself with a gun certainly happens. But so do suicides and dead children. Choosing sides is merely picking your poison.

Whether or not statistics show that more preventable deaths are caused by guns than when they are properly used for protection, that fails to factor in the intangible of merely having a gun. With all the horror stories flying off our TV screens and out of our newspapers each and every day, people own guns to feel safer, not only for themselves, but also for their families. This sense of security is not insignificant.

But where the tables turn against guns-for-personal-security is with the other side-effect of the 2nd Amendment. We as a nation are armed to the teeth. Good people have guns, regular people have guns, and terrible people have guns. Over 12,000 people died and over 26,000 were injured in this country last year by gun violence. Some might argue that the proliferation of guns in America is exactly why we cannot repeal the 2nd Amendment.

Basically, I need a gun because everyone else has one. Again, this argument is not without merit, but it is also, in a way, defeatist. Eliminating gun violence seems to be the common goal. If your position is do nothing, we have years and years of history to prove that doing nothing has not worked.

Then again, doing something has not been all that successful either. Ever since Ronald Reagan and Jim Brady were shot back in 1981, much of the public has demanded “gun control” and politicians have talked big, but done little. Calls for “keeping guns out of the hands of the wrong people” show a childish naiveté of the utter complexity of our gun problem. Of course, certain measures like background checks and waiting periods are somewhat sensible and mildly effective. But something drastic is needed. Doing a life jacket count is sensible, but wouldn’t it be more prudent to turn the boat so you don’t hit the iceberg?

Turning to the Popehat point, this one is the most difficult for someone who cherishes rights like the 1st, 4th, 5th, and 8th to get past. So many lawyers like me fight constantly against infringements on those rights, so the hypocrisy of advocating the total removal of the 2nd is not lost on me. But the difference is in the rights themselves. Rights like the right to due process or against illegal search and seizure protect us from our government. The 2nd Amendment only arguably provides an ineffective tool to attempt to accomplish the same thing.

Altering the Constitution should not be undertaken lightly, and to be quite honest, getting rid of the 2nd Amendment might be a terrible idea with disastrous consequences. But we should only hesitate at the implications of taking such a step, not at the violation of some sacred document. The framers of our Constitution did not walk away from ratification as though they had written a second Bible. They made sure there was a framework for change. The process for repealing a constitutional amendment is an incredibly high bar and one that seems almost impossible in our currently divided nation. But if America could unify to get the beer taps back in the saloons, could our generation at least have an adult conversation about whether or not the 2nd Amendment causes more problems than it is worth?

Reasonable people can certainly disagree on whether repealing the 2nd Amendment would cause an unraveling in the fabric of our nation. But we have seen that tinkering around the edges of the 2nd Amendment has already pulled at the threads of our other rights. With each successive attempt to control our gun problem, we find out how unsolvable the problem truly is. Perhaps it is time to consider that the only real solution to America’s gun problem might be the most obvious one.

“For those unfamiliar with local history, the Battle of Athens occurred in August 1946 when local citizens, including many military veterans who had recently returned home from World War II, took up arms against local officials accused of voter intimidation and corruption. A pitched gun battle between the G.I.s and their supporters and the McMinn County Sheriff’s Department (including many deputies who had been brought in from elsewhere) took place outside the jail until dynamite was used to set off an explosion, causing the deputies inside the jail to surrender. No one was killed in the “Battle,” but it did change the political face of the county for years to come.”

As to armed rebellion, who are we kidding?… It does not matter how many AR-15’s are in public hands, the government will win, win big, and win quickly.

What makes you so certain that if it comes down to Gov’t vs the people, that the army will by on the government’s side? In the above example, the WWII vets took up arms against their local government.

You also seem to indicate they have an unfair advantage with their “flying death robots and intercontinental ballistic missiles”, but I don’t see how they can be used within a civilian population that just happens to be housing armed rebels, so short of outright rebellion, I’m trying to understand your conceptualization here.

At the very least, the big bad wartoys will likely stay in the hands of the big, bad government. If there are armed uprisings, they will likely look more like the takeover of a bird sanctuary in Oregon than anything of substance or effect. As the number in any uprising grows, so does its effect, certainly. But I cannot see a scenario where an armed rebellion accomplishes anything against the government, unless the military or law enforcement switches sides in significant numbers. And then it is just trash can fires and hunger games for all of us.

Scott Jacobs

8 February 2016 at
1:03 pm -

And if you think the US Military would fire on, say, the state of Texas, you’re nuts.

Tennessee 70 years ago is hardly a benchmark of success or an indicator of modern possibility.

Why not? Nuclear weapons existed at the time, ditto heavy armor, aerial recon & bombardment, heavy artillery, machine guns, radio, etc. What’s the big game changer? Drones? Laser-guided munitions? The biggest impact of these has been to make foreign wars more palatable to the electorate, by reducing collateral damage and putting fewer of their sons in the line of fire. They didn’t really change the game the way nuclear weapons, or even machine guns or air power did.

“…is the only time our leaders have granted a constitutional right to possess tools.”

I have a bit of a quibble with this line.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence(sic), promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The above being the preamble to the Constitution fairly clearly shows that ‘We the People’ granted ourselves rights, not that the government granted us rights.

And while I understand that the following is not binding, from the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Rights may be unalienable. I am not proposing that the 2nd Amendment be so, I am just pointing out that it may be so, and not by dint of government effort in either direction.

Otherwise, good article. I am waiting with baited breath for the next revolution. The way our ‘leaders’ ignore the interests of the populace (and their campaign promises) it cannot be very far off. Whether arms will be a significant part or not remains a question.

Our leaders wrote the Constitution. They made it sound fancy and ordained, but they wrote it. Pointing out the equality of mankind as written by a government exclusively controlled by white males seems to support my argument. They got a lot of things right, and even #2 was right at the time. But it is not right now.

I am proposing that the right to self-defense, like the right to self-determination, is a natural (or god-given) right. Not only am I proposing it, a reasonable reading of the the documents and the writings of the men who wrote the Constitution supports the thesis that they believed that to be true as well

I’m always fascinated by the natural rights argument. It’s the same one used by SJWs who argue they have a right to happiness, to a world that revolves around their feelings. Funny how everyone can use the same claim of entitlement for their own purposes, even when their purposes are diametrically opposed.

Let’s say that’s true (I disagree with the premise, but we’ll go with it), would you say that view is likely to always be the case? There was considerable discussion in the passage of the 14th Amendment on the Senate Floor, about Freedmen needing access to arms for self defense. In the 1960’s, viewing police harassment and beatings, the Black Panthers took to the streets, armed, to ensure equal and responsible treatment by authorities.

I’ve been reading your pieces for a while and you seem to have a passing familiarity with police abuses, so why the short-sighted view on the need for arms by certain members of the populace?

And this brings us back around. When is the last time a private citizen has used a gun to protect himself from the police and lived to tell or ever experienced a day of freedom after? We, as a country, decided we needed to arm the hell out of our government to protect us domestically and abroad from all the bogeymen out there. We built a monster that we cannot defeat through the use of the second amendment.

The real problem I have with your argument is that it’s based on a Government acting appropriately and with proper restraint & fealty to the Constitution (and other rights).

We all grow up with the notions of our parents as a funnel for viewing issues. Mine were children of Holocaust survivors and I grew up with a firm belief that “Never Again” had to be an active(even proactive) stance, lest government be capable of falling to those that would harm another without permitting them rights, due process, etc…

We still have folks alive today that were rounded up because of their ethnicity and placed into Japanese concentration camps. We still have folks alive today that were sterilized for being “imbeciles” by their government. Buck v. Bell and Korematsu are still not overturned by SCOTUS.

I would say that it is less of a trust in our government, but rather that through trillions of dollars and immense increases in weapons technology, successful armed rebellion is off the table.

Keith

8 February 2016 at
2:46 pm -

If it were correct that massive out-performance in weapons tech saved the day and won the war, the folks in Kabul probably haven’t gotten the memo.

The Bundy folks walked away (the first time around) without getting shot and starred down the big bad BLM & Gov with all their advanced weaponry.

And while we can go with assorted battle scenarios all day long (the only way to win is not to play, btw), there’s no scenario where we go from status quo to full scale rebellion without some intervening steps.

And somewhere in between, the weapons in private arsenals can be very effective (a la Athens, TN) without the chance to resort to Nuclear tactical strikes by the President.

Ken Womble

8 February 2016 at
3:02 pm -

I think you just won the argument by describing the plot to the 1983 Matthew Broderick classic, War Games. Well played, Keith.

I’m not saying I’m right. But many people, myself included (obviously), see a gun problem in this country. How to deal with it is incredibly complex, no doubt. However, I take issue with doomsday predictions that are leveled with such certitude. I think a transitional period would be tough, but I predict that on the other end would be a more peaceful, less violent society, as well as much fewer gun deaths. I could be wrong. But I could also be right.

Speaking of tools…If some kid from film school were to do a remake of One Flew Over the Cuckoo’s Nest today, what the heck would they replace the bathing room control pannel, that the Chief throws through the window in the closing scene, with?

Anyway, seeing how it is “obvious” the sky is falling and actually repealing constutional amendments seems to be in vogue, because the white guys didn’t include the black and brown guys when they broke from the whitest crown on earth or something, are you thinking about repealing just this one or actually adding a few too? Just saying, but if you are actually thinking about tidying the joint up a bit in pursuit of a more peaceful and less violent society why not get it on, seeing as how the black and brown guys and even the girls are allowed to, not only vote, but actually run for office and play with ink just like the white guys these days? Never mind about the poor girls and guys, they never really counted even in an agricultural based economy.

And seeing as how even CDLs from New York, like yourself, are not satisfied with simply watering them constutional amendments down, with more buckets of ink from the nine upon high in the search for a more peaceful and less violent society, is the 2nd amendment really the place to start? We are talking PROBLEMS after all!

Oh yeah, just a point or two of clarification. Do your eyes start to roll into the back of your skull when you channel human rights? And if freedom of speech, assembly, due process, and voting, just to name a few, aren’t “tools” just what the heck are they?

P.S. Take away the suicides, which no one wants to talk about anyway even though rich people do it too, and then take another good hard look at your obvious problem. But, whatever you do, don’t forget to buy a good umbrella because you never know. They make bullet proof ones these days you know and even though they aren’t gaurenteed, they haven’t been outlawed just yet.

P.S.S. “If you are a regular reader of Fault Lines, then you should know that we aren’t here to rub your tummy with constant agreement. Fault Lines is here to dig deeper and try to unravel incredibly complex issues; pleasantries and consensus be damned.”

Are you running for school board Ken? If not, you should. But I warn you it’s an incredible complex deal running a school board these days and there is a literally a metric shit ton of unpleasantaries to unravel if you choose to do so. So in the future, if you don’t mind, please leave all your frothing feelz for your school board campaign and get over yourself. Fault Lines is fun and all but it’s not exactly a secret club house of complexity. Although it could be if you regular writers started requiring an adequate probationary period and a vote, before the new writers around here were allowed to patch in, but that is never gonna happen if you keep letting that old curmudgeon subtlety reign you all in with governors on your carburetors and frowning upon even an occasional wheelie now and then the night of, while instead insisting upon tranquility and balance even when making omelets the day after.

P.S.S. “I would say that it is less of a trust in our government, but rather that through trillions of dollars and immense increases in weapons technology, successful armed rebellion is off the table.”

You can’t be having that sort of attitude when you will need it metaphorically or not when you run for school board. And although it might not play on your first few attempts, once your neighbors realize your heart is in the right place, there are plenty of recent gorilla warfare examples to cite from in various locations on the planet that a good campaign staff will be able to spin in your favor without anyone getting to bent out of shape.

At the end of the process, we would still be a nation with a subset of disturbed individuals who would find new and exciting ways to kill and maim. We would create a whole new group of people for the prosecutors to go after, so I guess that’s a good thing for somebody.

Ditching the best tools for personal defense on the hope that we MIGHT become a more peaceful society is not dumb, it is “let’s chug the mystery bottle under the sink” imbecilic.

The tragedy of suicide may be improved with better mental health care, though the constant harping of “keep guns away from the mentally ill” does a great deal to make sure that folks stay away from mental health practitioners.

Nearly half of all murders are gang related. Most gangs traffic in narcotics. Legalize drugs and watch that disappear.

Banning guns isn’t going to solve the problems you have identified. (Which are problems, I do agree with you there.)

Looking back, the gap between starting gun control measures and violent crime declining is about 90 years. And that doesn’t even count the violence that will be necessary to get rid of some of the guns we already have.

I must say I neither believe that outlawing guns would cause crime to skyrocket and the gulags to be built, nor that it would cause violence to decrease. Having examined the cases of many different places and epochs I’ve come to the conclusion that these things are mostly culturally driven, and have very little to do with gun laws. Canada and the UK haven’t fallen into despotism, Newark and Mexico haven’t become safe havens.

Ken, there’s a reason why gun control advocates use the term “gun deaths” rather than looking at violent crime in general or even firearm homicide in particular. The term “gun deaths” includes suicides, and that happens to be the one category that can be strongly shown to be decreased with stricter gun laws. Not that overall suicides are reduced, but “reduces gun deaths” sounds a lot better than “drives people to hang themselves.”

I find it humorous so many people think an enraged and armed populace wouldn’t stand a shot against the US Military if it came down to it. Our military hasn’t exactly been successful stomping out insurrections across the globe going back 50 years.

The US military has a 200 year record of being pretty good at “insurrection management.” How much of that experience could be effectively used against the families and friends of soldiers, sailors, airmen, and marines is an entirely different problem. (Not much I suspect. The men who would be kicking in doors to suppress an insurrection do not have great love for the legislatures that would precipitate such tragedy.)

I won’t pretend that this issue is simple. And if I’m honest, there are some quite reasoned and persuasive arguments made here. I’m not backing off my stance because, on the whole, I think that the modern interpretation of the 2nd Amendment is a bastardized “right” that is the black sheep of our American Constitution and I find the thought of removal appealing.

But guns do seem like a damned if you do, damned if you don’t situation if ever there was one. However, we can all rest assured that we had a supremely more high-minded debate than what was simultaneously taking place over on the Twitter (save for Keith’s compelling contribution.

How did that all powerful US goverment idea work out in Veitnam, And Iraq and Afghanistan? And exactly how does bombing cities that supply your money and munitions workout? Or going to war against the red states that supply damned near all of your military recruits?

You have not thought this out, and have no clue what the consequences will be.

Yea, the government will get a few idiots who make heroic last stands, but the rest will be thinking safehouse, not Alamo.

The resulting civil war will be the dirtiest in history. Do some research on 4th generation warfare before you blithly assume the US government will able to deal with 55 million angry American households and 300+ million firearms in circulation.

We have already had a discussion on victim disarmament. Your side lost.

“You have not thought this out, and have no clue what the consequences will be.”

Which is why I humbly wrote “Altering the Constitution should not be undertaken lightly, and to be quite honest, getting rid of the 2nd Amendment might be a terrible idea with disastrous consequences.” I am willing to admit that my predictions are just that, predictions. But for you to scold me and then go on to foretell an uncertain future with such specificity is hypocritical. The gun conversation needs a good slap in the face so it will understand that I can advocate the repeal of the 2nd Amendment without any help from a tin-foil hat. I may be wrong, but anyone who approaches this issue with simplicity or certainty is most definitely wrong.

getting rid of the 2nd Amendment might be a terrible idea with disastrous consequences.”

Considering that around 40+ States have their own 2nd Amendment equivalents (Eugene Volokh did the heavy lifting here), at best the “disastrous consequences” would be limited, short of other States following suit.

In our nation’s almost 240 years of existence, the 2nd Amendment is the only time our leaders have granted a constitutional right to possess tools.

I would assert that freedom of the press in the First Amendment implies the right to own a press. And that the mention of houses and papers in the Fourth Amendment implies the right to have both, and to keep them private.

And of course the Tenth can and should be read to ban all manner of sumptuary laws, including those concerning alcohol and drugs.

[…] around me to have guns. Fault Lines has seen two very thoughtful posts about the Second Amendment, against it by Ken Womble and for it by Josh Kendrick. The discussion has, by and large, been substantive and informative, […]

In our nation’s almost 240 years of existence, the 2nd Amendment is the only time our leaders have granted a constitutional right to possess tools.

The Federalist would disagree with you that the Second Amendment granted any rights: They thought the rights to keep & train with effective means of self defense, to speak and worship freely, to have privacy in one’s home and affairs, etc., etc., were so obvious, and Congressional power so obviously limited, that they felt the Bill of Rights unnecessary.

The Anti-Federalists would disagree with you too: They thought the rights keep & train with effective means of self defense, to speak and worship freely, to have privacy in one’s home and affairs, etc., etc., were so important and so certainly inherent to the human condition, that they felt the need of a Bill of Rights explicitly prohibiting Congress from interfering with these rights.

But in no historically-plausible interpretation does the Second Amendment “grant” any rights.

Ken White is absolutely correct: Amendments to infringe on rights that predate the Constitution itself are a precedent you do not want to set.

[…] of prosecuting cops who lie about other cops’ killings. However, Womble, in a Monday Mimesis Law article, provides several not-so-convincing arguments for repealing the Second Amendment of the United […]

[…] of prosecuting cops who lie about other cops’ killings. However, Womble, in a Monday Mimesis Law article, provides several not-so-convincing arguments for repealing the Second Amendment of the United […]

[…] feelings on both sides. It’s been a hot topic this week at Fault Lines. Ken Womble says it’s time to discuss repealing it. I say leave it alone. Scott Greenfield doesn’t like guns, but he likes the […]

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